Saturday, June 1, 2013

ABOUT FISH AND FISHING

What can legally be said about the incursions of Chinese fishing
and other vessels into Philippine waters?
The first thing, of course, is to look into the laws that govern the
seas.

The importance of the seas flows from two factors: first, they
are a medium of communication, and second, they contain vast natural
resources. In the seventeenth
century the Portuguese proclaimed vast areas of sea as belonging to
itself. But it was Grotius who
elaborated the doctrine of the open seas which considers the high seas as res communis accessible to all. The doctrine, however, recognized
as permissible the delineation of
a maritime belt by littoral states as an indivisible part of its domain.

In international law, specifically the United Nations Convention
on the Law of the Sea (UNCLOS), there is such a thing as the exclusive economic
zone of a state or a state’s
“patrimonial sea.”. Both the
Philippines and China are among the signatories to the UNCLOS and are therefore
bound to respect its provisions.

To understand the extent of the authority of states over waters
one must begin with an understanding of baselines. The baseline is “the low-water line along the coast as
marked on large scale charts officially recognized by the coastal State.” It is
from this line that the various areas of a state’s authority over the sea are
measured: the territorial sea, twelve nautical miles from the baseline; the
contiguous zone, 24 miles from the baseline; and exclusive economic zone, 200
nautical miles. The Philippines
recently revised its Baseline Law to make it conform to the requirements under
UNCLOS.

The doctrine on the exclusive economic zone is a recent
development. Prior to the
acceptance of this doctrine, all waters beyond the contiguous zone were
considered as high seas over which no state had control.
The exclusive economic zone doctrine developed owing to the desire of coastal
states for better conservation and management of coastal fisheries.

The coastal state has rights over the economic resources of the
exclusive economic zone, that is, over its seabed, subsoil and waters. But the
provisions on the exclusive economic zone are both a grant of rights to and an
imposition of obligations on coastal states relative to the exploitation,
management and preservation of the resources found within the zone.

Coastal states have two primary obligations. First, they must ensure through proper
conservation and management measures that the living resources of the EEZ are not
subjected to over-exploitation.
This includes the duty to maintain and restore populations of harvested
fisheries at levels which produce a "maximum sustainable yield." Second, they must promote the objective of "optimum
utilization" of the living resources. They therefore should determine the allowable catch of
living resources. If the coastal
state does not have the capacity to harvest the allowable catch, it must grant
access to other states.

The claim of the Philippine government is that Chinese fishing
vessels continue to foray into the excusive economic zone of the Philippines
without the needed consent from the Philippine government and in fact against
the wishes of the Philippine government and to the prejudice of the economic
rights of the Philippines over the patrimonial sea.

Considering the width of the patrimonial sea which a state may
claim and the distances between states, it is inevitable that the different
claimed areas will overlap. China,
for its part, bases its claim on what it calls the “nine-dash map,” the
demarcation lines used by both the governments of the People's Republic of
China and the Republic of China (Taiwan).
The demarcation lines include, among others, the Spratly Islands
disputed by the Philippines, China, Brunei, Malaysia, Taiwan, and Vietnam and
the Panatag Shoal in Zambales. At
stake here are believed to be not just fishing resources but also vast mineral
resources, including oil. The
Chinese date their claim under the “9-dotted line” to as early as 1948.

In the face of conflicting claims and in the light of
international law against resort to force, the Philippines obviously cannot
enforce by force of arms what it believes to be its right. The Philippines therefore hopes that
arbitration will solve the problem.
Will it?

Peaceful settlement of disputes is compulsory. Under Part XV of
the 1982 Convention on the Law of the seas states are required to settle
peacefully disputes concerning the Convention. If a bilateral settlement fails, Article 285 requires submission
of the dispute for compulsory settlement to one of the tribunals clothed with
jurisdiction. The alternatives are
the International Tribunal for the Law of the Sea (ITLOS), the International
Court of Justice (ICJ), or a voluntary arbitral tribunal constituted under the Convention.

Assume, however, that the Philippines wins, how will the decision
be enforced? Submission to the ICJ
may be declined by a state. But if
a state submits to the ICJ, decision of the ICJ maybe enforced by the Security
Council. But China has veto power
in the Security Council. For its
part, ITLOS does not contain an enforcement mechanism. Associate Justice Antonio Carpio calls
the situation a “legal black hole” and suggests that our only hope is that the
bully China will yield to international public opinion.